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Opponents of immigration reform say it has no chance of passing in an election year. History suggests they are wrong.
A review of 81 immigration laws enacted over the past 50 years reveals that 70 percent of these laws were passed in the same year as a congressional election. The pattern was the same whether it was a presidential or a midterm election year, a major rewrite of the Immigration and Nationality Act or a technical amendment. And notably, the number of bills passed during the two-month run-up to the election exceeded the number of bills passed during the lame-duck period after the election.
Isn’t immigration an issue that lawmakers run from in an election year? On the contrary. Most immigration laws are centered on issues like the economy, law enforcement and humanitarian values — election-year issues all.
Consider, for example, the Immigration Act of 1990. The bill increased penalties for immigration fraud and made it easier to deport criminals, including those who hold green cards. But it also created a new visa category tied to U.S. job creation and expanded humanitarian relief when immigrants cannot return home because of a natural disaster. As President George H.W. Bush said when signing the 1990 Immigration Act: “This bill is good for families, good for business, good for crime fighting, and good for America.”
What about 2002, the first election year after the 9/11 attacks? Congress tackled immigration step by step. It passed the Enhanced Border Security and Visa Entry Reform Act of 2002, which dramatically improved passport and visa security and tightened rules on foreign students. But Congress also passed six other immigration laws that year that dealt with topics such as immigrant investors, high-skilled immigrants and foreign physicians.
Still, two pieces must fall into place before 2014 will follow the historical trend. First, President Barack Obama must resist pressure to use his executive authority on immigration. This was never an issue in prior immigration debates. Courts deferred to Congress, and presidents did their best, or acted like they were doing their best, to implement the law. However, Obama’s unilateral actions to delay deadlines in the Affordable Care Act make Republicans nervous that they will pass an immigration bill that the president never intends to enforce. Any suggestion that he is willing to do the same on immigration will aggravate Republican fears and scuttle the discussions.
The president did his part during last week’s State of the Union address. For the fourth time in four years, he encouraged Congress to pass immigration reform. But in a speech in which he outlined his plan to work around Congress on a range of issues, he made no mention of executive action on immigration. There were no timelines, no threats and no policy positions. For immigration reform, it was a moment where discretion was the better part of valor.
Second, Congress must reach a compromise on the treatment of undocumented immigrants. There are signs of progress in the House of Representatives, where Republican leadership just released standards that include a proposal to allow all undocumented immigrants to live in the U.S. legally and without fear of deportation.
The significance of this development cannot be overstated. Just seven years ago, House Republicans passed a bill that would have criminalized 11 million undocumented immigrants and resulted in their immediate deportation. Today, House Republicans recognize that our national and economic security depend on undocumented immigrants coming out of the shadows and living under a legal framework.
The details of the Republican proposal, and the timeline to move forwards, have yet to be worked out. But they may find support to do so from a key group: immigrants themselves. A recent Pew Research study found that the majority of Hispanics think that being able to live and work in the United States legally without the threat of deportation is more important for unauthorized immigrants than a pathway to citizenship. Since Hispanics make up roughly three-quarters of the 11.7 million undocumented immigrants, their perspectives give both parties room to pursue practical solutions.
These obstacles are formidable and will require resolution in the months ahead. Can Speaker John A. Boehner really, as he says, keep 218 frogs in the wheelbarrow long enough to get an immigration bill passed? If history is any indication, an election year is the perfect time for him to try. But he will need the president’s continued restraint if he is to have any chance of success.
Lynden Melmed served as chief counsel of U.S. Citizenship and Immigration Services at the U.S. Department of Homeland Security from 2007 through 2009. He is a partner at Berry Appleman & Leiden LLP, a global law firm dedicated to immigration.